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Maintenance Terms

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Atlantic Maintenance Terms and Conditions

Version 4.0 – May 3, 2020

  1. The initial term of the Agreement is the period indicated on the Sales Order Form (the “Order,” collectively, with these Atlantic Maintenance Terms and Conditions and any other incorporated agreements, the “Agreement”). Thereafter, this Agreement will automatically renew for successive twelve (12) month periods, unless either party gives written notice of non-renewal at least thirty (30) days prior to expiration of the then-current term. Customer shall not (without Atlantic (“Atlantic”)’s prior written consent): (a) sell, assign or transfer its rights and/or obligations under this Agreement, in whole or in part; (b) relocate (including to another Customer site) multifunctional printer (MFP) equipment covered under the agreement (as indicated on the Order) (“Equipment”); or (c) use Equipment other than for internal business purposes, in the ordinary course of business. Any violation of the foregoing prohibition is a default.
  2. For Equipment purchases or leases (supplied by Atlantic), if Customer (a) cancels this Agreement after signing and before receipt of Equipment; and/or (b) refuses or otherwise fails to accept delivery of such Equipment within forty-five (45) days after Signing the Agreement, Customer shall, immediately upon demand, pay Atlantic a restocking fee equal to 20% of equipment selling price.
  3. Unless otherwise specified on the Order, the pricing under this Agreement is based on a cost per click (“CPC”) maintenance program (applicable CPCs and are listed on the Order). Each copy or print on an 8.5”x11” 20lb bond page is a click. CPC programs may be Supply-Inclusive or Parts and Labor Only (as stated on Order). Parts and Labor Only programs exclude supplies and consumable parts (e.g. drums, developer, fusers, blades). For Supply-Inclusive programs, Atlantic will provide supplies (e.g. toner and developer) and consumable parts required for normal operation of Equipment, based upon: (a) manufacturer’s stated yield on an 8.5″x11″ 20lb bond page; and (b) Atlantic’s published and/or commercially reasonable expectations/assumptions of both usage/volume (e.g. based upon historical usage/volume information) and consumption of supplies and consumables, as determined by Atlantic in its sole discretion. Any additional supplies (e.g. toner and/or developer) and/or consumable parts required due to greater image densities; otherwise reduced yield; or use, volume or consumption materially greater than Atlantic’s reasonable expectations/assumptions, will be separately chargeable at Atlantic’s then-current rates. Alternatively, for use, volume or consumptions materially greater than Atlantic’s expectations/assumptions, Atlantic may, in its sole discretion, upon notice to Customer, elect to re-price the maintenance program(s) hereunder and/or convert the Agreement into an allowance-based CPC maintenance program. For Orders without minimum committed volumes, if usage falls below Atlantic’s minimum requirements, Atlantic may, upon notice, impose a minimum volume requirement (or base) as a condition to providing further Services. For Customer’s convenience, Atlantic may stock toner, parts and/or supplies at Customer’s location. Any such stock remains Atlantic’s property until fully consumed, and if Customer fails to return the same to Atlantic upon its request, it will be chargeable to Customer at Atlantic’s then-current rates. Atlantic reserves the right to charge a monthly fee to cover increased variable costs including, but not limited to fuel, shipping and/or freight.
  4. This is a non-cancellable term agreement. Early termination by Customer is a default, upon which, without limiting Atlantic’s other available remedies, all past, current and prospective charges, plus any expense or other liability arising directly or indirectly from such default, shall become immediately due and payable. For CPC programs, “prospective charges” equal the average monthly charge (inclusive of any Equipment lease-inclusive pass-through billing) prior to the default (applicable CPCs multiplied by average monthly usage), multiplied by the number of months remaining in the then-current term. Upon any termination hereof, Customer shall immediately return to Atlantic any Atlantic property in its possession (e.g. equipment (whether loaner or replacement), consumable parts or supplies (e.g. toner). Should Customer fail to meet such return obligation, Customer shall pay Atlantic for such property, at Atlantic’s then-current rates, immediately upon demand.
  5. Unless specifically listed on the Order, this Agreement does not cover network support (e.g. installation of print drivers and utilities), beyond the Equipment. Unless covered by a separate network support agreement, all network functionality support beyond the initial installation will be chargeable at Atlantic’s then-current rates.
  6. All charges arising hereunder, including, without limitation, monthly maintenance fees and any billable excess clicks, services, supplies, and all applicable taxes on such charges, are due, without setoff, reduction or counterclaim, net thirty (30) days from the invoice date. Atlantic may charge Customer interest on any overdue (not paid when due) charges at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by law. Atlantic reserves the right to increase rates hereunder once annually.
  7. Customer is responsible: (a) to provide: (i) all requested and/or required meter reads on a timely basis (non-compliance will necessitate meter estimation to determine invoice amounts and application of additional per-meter processing charges or, for recurring non-compliance, at Atlantic’s discretion, be deemed a default); (ii) adequate operating environment/conditions, including proper ventilation and power; and (iii) Atlantic with full and free access to Equipment (e.g. physical, remote and bi-lateral connectivity/communication access, including permitting installation of applicable agents); (b) to, at all times hereunder, operate Equipment properly, safely and in accordance with manufacturers’ specifications; (c) for the accuracy of information provided to Atlantic (e.g. usage) to determine pricing; and (d) for ensuring compliance with its legal and contractual requirements (e.g. under third party leases), including, without limitation, those concerning data retention, protection and/or deletion/removal. The parties acknowledge and agree that Atlantic shall have no obligation to remove, delete, preserve, maintain or otherwise safeguard any information, images or content retained by or resident in any Equipment.
  8. Subject to the terms and entitlements of the applicable maintenance program, during regular business hours (8:30 a.m. – 5:00 p.m. EST, Monday through Friday, except Federal holidays), Atlantic (or its assigned servicing agent) will provide required preventive maintenance and repair services necessary to keep the Equipment operating in substantial conformity with applicable published specifications, provided that: (a) the Equipment is in good working order on the date of commencement of this Agreement; (b) the service is not an Excluded Service; and (c) Customer remains in compliance with its obligations hereunder and under any other agreement with Atlantic and/or related to Equipment. Customer agrees Atlantic shall not be required to use OEM parts and supplies, provided that parts or supplies meet or exceed manufacturers’ specifications. Both installed and removed parts remain property of Atlantic.
  9. Exclusions. Service calls for operator functions (e.g. adding or changing supplies, auto gradation/color calibration, or any other Customer responsibility) will be subject to a time and material service charge at Atlantic’s then-current rates. Other services that are excluded from Atlantic’s obligations and chargeable hereunder (collectively, “Excluded Services” or “Exclusions”) include, without limitation:
    (a)Repairs or other services resulting from or necessitated by: (i) causes other than normal use, including, without limitation: (1) Customer’s (or any third party’s): misuse, abuse (e.g. excessive usage), accidents, negligence, willful acts or use of parts/supplies (including media) which are unsupported, not within Equipment specifications and/or which otherwise do not meet the standards of the manufacturer or Atlantic; (2) failure or variances of electrical power or other failure to provide proper operating environment (e.g. air conditioning, heat or humidity control); (3) Customer’s failure to discharge its responsibilities or otherwise comply with its obligations hereunder; and (4) theft, fire, water, acts of god and/or any other damage resulting from causes outside of Atlantic’s reasonable control; (ii) performance of service or repairs on, or other modification of, Equipment by anyone other than Atlantic or its assigned servicing agent; (iii) Equipment transportation or relocation; and/or (iv) operating system or application software, network issues, firmware or other programmed code, internal or external to Equipment;
    (b)Equipment transportation, relocation and/or related services (e.g. Equipment wrapping, unwrapping, uninstalling, reconnection, reinstallation, repair services resulting from transportation/relocation not performed by Atlantic);
    (c)Services or other performance outside of Atlantic’s regular business hours;
    (d)Wiping, erasing or otherwise removing hard drive(s) from Equipment (except where subject to a separate order); and
    (e)Other work and/or services beyond the scope of this Agreement.
    All Excluded Services are chargeable at Atlantic’s then-current rates and terms. If Atlantic determines it is unable to maintain Equipment through its routine preventive maintenance program (e.g. due to advanced age, excessive usage, an Exclusion or any other reason), any necessary services will be deemed Excluded Services for which Atlantic will endeavor to provide a cost estimate. If Customer declines to authorize the same, Atlantic reserves the right, upon at least ten (10) days’ written notice, to terminate coverage under this Agreement for any or all Equipment after which Atlantic shall have no further obligations with respect to terminated Equipment. If the Exclusion that formed the basis for termination resulted, in whole or in part, from an act or omission of Customer (e.g. misuse, negligence, unauthorized servicing or other failure to meet its obligations), the termination will be treated as a default. Neither Atlantic nor an assigned servicing agent shall be responsible for service delays or inability to perform service due to any “cause” beyond its reasonable control (e.g. unavailability of parts, property manager demands); and, in any such event, Atlantic reserves the right to terminate this Agreement in whole or in part on not less than ten (10) days’ notice. As long as Customer is not responsible, in whole or in part, for the “cause” that formed the basis for Atlantic’s termination, Atlantic will credit to Customer pre-paid fees attributable to the terminated portion of the then-current term (except to the extent Customer has outstanding obligations (e.g. for pre-termination performance) or defaults.
  10. Atlantic assumes no responsibility or liability whatsoever for: (a) Exclusions; (b) Customer’s failure to meet its obligations (including those responsibilities under Section 7 hereinabove); and/or (c) for Customer’s (or any third party’s) operation, use (including regulatory compliance) and/or misuse of, or other damage to, Equipment; and Customer will indemnify, defend and hold harmless Atlantic from and against any claims, expenses and/or other liability arising from any of the foregoing.
  11. ATLANTIC’S TOTAL OBLIGATIONS AND ANY EXPRESS WARRANTIES UNDER THIS AGREEMENT, IF ANY, ARE IN LIEU OF: (A) ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WHICH ARE SPECIFICALLY WAIVED; AND (B) ALL OTHER OBLIGATIONS AND/OR LIABILITIES FOR DAMAGES, INCLUDING, WITHOUT LIMITATION: 1) PERSONAL INJURY AND PROPERTY (INCLUDING INTELLECTUAL PROPERTY); AND 2) LOST PROFITS, LOSS OF REVENUE, LOSS OF USE, LOST OR CORRUPTED DATA, AND ANY OTHER INDIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ATLANTIC’S SERVICES. CUSTOMER AGREES THAT IF ATLANTIC CAUSED ANY INJURIES OR DAMAGES TO CUSTOMER OR CUSTOMER’S PROPERTY, WHICH SAID CLAIM IS NOT OTHERWISE WAIVED HEREIN, ATLANTIC’S MAXIMUM CUMULATIVE LIABILITY FOR ANY AND ALL SAID INJURIES AND/OR DAMAGES WILL NOT EXCEED CUSTOMER’S PAYMENTS TO ATLANTIC DURING THE IMMEDIATELY PRECEDING SIX (6) MONTHS FOR THE SERVICE(S) RENDERED THAT CAUSED SAID INJURIES OR DAMAGES.
  12. This Agreement constitutes the entire agreement between the parties with respect to the Equipment, superseding all previous proposals, oral or written.
  13. Customer will be in default if it fails to comply with its obligations, including making prompt undisputed payments when due, under this Agreement, any other agreement with Atlantic or a third party lease of Equipment. Upon any Customer default, Atlantic may (without notice): (a) withhold services, supplies and/or other products until the default is resolved (during which payment obligations will continue to accrue); (b) declare immediately due and payable all past, current and prospective charges under this Agreement and any other agreement; (c) commence collection activities for all sums due and to become due hereunder, including, without limitation, costs and expenses of collection and reasonable attorneys’ fees; (d) terminate this Agreement on ten (10) days’ written notice; and/or (e) pursue any other remedies permitted by law. Customer will reimburse Atlantic for all reasonable costs and expenses incurred (including reasonable attorneys’ fees, court costs, collection agency fees, etc.) in enforcing this Agreement. Atlantic’s rights and remedies herein are cumulative and not exclusive of any other rights and/or remedies available to Atlantic at law, in equity, under statute or otherwise. Should either party commence a lawsuit arising out of or related to the terms and conditions of this Agreement, such lawsuit shall be filed exclusively in a state or federal court located in New York County. Further, this Agreement is governed by, and shall be interpreted exclusively under, the laws of the State of New York.

Version 3.0 – September 1, 2019

  1. The initial term of the Agreement is the period indicated on the Sales Order Form (the “Order,” collectively, with these Atlantic Maintenance Terms and Conditions and any other incorporated agreements, the “Agreement”). Thereafter, this Agreement will automatically renew for successive twelve (12) month periods, unless either party gives written notice of non-renewal at least thirty (30) days prior to expiration of the then-current term. Customer shall not (without Atlantic (“Atlantic”)’s prior written consent): (a) sell, assign or transfer its rights and/or obligations under this Agreement; or (b) relocate (including to another Customer site) multifunctional printer (MFP) equipment covered under the agreement (as indicated on the Order) (“Equipment”). Any violation of the foregoing prohibitions is a default.
  2. For Equipment purchases or leases (supplied by Atlantic), if Customer (a) cancels this Agreement after signing and before receipt of Equipment; and/or (b) refuses or otherwise fails to accept delivery of such Equipment, Customer shall, immediately upon demand, pay Atlantic a restocking fee equal to 20% of equipment selling price.
  3. Unless otherwise specified on the Order, the pricing under this Agreement is based on a cost per click (“CPC”) maintenance program (applicable CPCs and applicable entitlements (e.g. supply-inclusive, part and labor only) are listed on the Order). Each copy or print on an 8.5”x11” 20lb bond page is a click. CPC programs may be Supply-Inclusive or Parts and Labor Only (as stated on Order). Parts and Labor Only programs exclude supplies and consumable parts (e.g. drums, developer, fusers, blades). For Supply-Inclusive programs, Atlantic will provide toner and developer required for normal operation of Equipment based on manufacturer’s stated yield on an 8.5″x11″ 20lb bond page. Any additional toner and/or developer required due to greater image densities and/or otherwise reduced yield will be separately chargeable at Atlantic’s then-current rates. For Orders without minimum committed volumes, if usage falls below Atlantic’s minimum requirements, Atlantic may, upon notice, impose a minimum volume requirement (or base) as a condition to providing further Services. For Customer’s convenience, Atlantic may stock toner, parts and/or supplies at Customer’s location. All such stock remains Atlantic’s property until fully consumed, and if Customer fails to return the same to Atlantic upon the earlier of: (a) the end of this agreement and (b) Atlantic’s request, such stock will be chargeable to Customer at Atlantic’s then-current rates. Atlantic reserves the right to charge a monthly fee to cover variable costs including, without limitation, fuel, freight and/or shipping.
  4. This is a non-cancellable term agreement. Early termination by Customer is a default, upon which, without limiting Atlantic’s other available remedies, all past, current and prospective charges, plus any expense or other liability incurred by Atlantic as a result of such default, shall become immediately due and payable. For CPC programs, “prospective charges” equal the average monthly charge (inclusive of any Equipment lease pass-through billing) prior to the default (applicable CPCs multiplied by average monthly usage), multiplied by the number of months remaining in the then-current term. Upon any termination hereof, Customer shall immediately return to Atlantic any Atlantic property in its possession (e.g. equipment (whether loaner or replacement), parts, supplies and/or toner). Should Customer fail to meet such return obligation, Customer shall, immediately upon demand, pay Atlantic for such property, at Atlantic’s then-current rates.
  5. Unless specifically listed on the Order, this Agreement does not cover network support (e.g. installation of print drivers and utilities), beyond Equipment’s initial installation. Unless covered by a separate network support agreement, all network functionality support beyond the initial installation will be chargeable at Atlantic’s then-current rates.
  6. All charges arising hereunder, including, without limitation, monthly maintenance fees and any billable excess clicks, services, supplies, and all applicable taxes on such charges, are due, without setoff, reduction or counterclaim, net thirty (30) days from the invoice date. Atlantic may charge Customer interest on any overdue (not paid when due) charges at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by law. Atlantic reserves the right to increase rates hereunder once annually.
  7. Customer is responsible: (a) to provide: (i) all requested and/or required meter reads on a timely basis (non-compliance will necessitate meter estimation to determine invoice amounts and application of additional per-meter processing charges or, for recurring non-compliance, at Atlantic’s discretion, be deemed a default); (ii) adequate operating environment/conditions, including proper ventilation and power; and (iii) Atlantic with full and free access to Equipment (e.g. physical, remote and bi-lateral connectivity/communication access, including permitting installation of applicable agents); (b) to, at all times hereunder, operate Equipment properly, safely and in accordance with manufacturers’ specifications; and (c) for ensuring compliance with its legal requirements, including, without limitation, those concerning data retention, protection and/or deletion/removal. The parties acknowledge and agree that Atlantic shall have no obligation to remove, delete, preserve, maintain or otherwise safeguard any information, images or content retained by or resident in any Equipment.
  8. For applicable labor-inclusive CPC maintenance programs, during regular business hours (8:30 a.m. – 5:00 p.m. EST, Monday through Friday, except Federal holidays), Atlantic (or its assigned servicing agent) will provide required preventive maintenance and repair services necessary to keep the Equipment operating in substantial conformity with applicable published specifications at no additional cost to Customer, provided that: (a) the Equipment is in good working order on the date of commencement of this Agreement; (b) the service is not an Excluded Service; and (c) Customer remains in compliance with its obligations to Atlantic both hereunder and under any other agreement. Customer agrees Atlantic shall not be required to use OEM parts and supplies, provided that parts or supplies meet or exceed manufacturers’ specifications. Both installed and removed parts are deemed property of Atlantic.
  9. Service calls for operator functions (e.g. adding or changing supplies, auto gradation/color calibration, or any other Customer responsibility) will be subject to a time and material service charge at Atlantic’s then-current rates. Other services that are excluded from Atlantic’s obligations and chargeable hereunder (collectively, “Excluded Services” or “Exclusions”) include, without limitation:
    1. Repairs or other services resulting from or necessitated by: (i) causes other than normal use, including, without limitation: (1) Customer’s (or any third party’s): misuse, abuse, accidents, negligence, willful acts or use of parts/supplies (including media) which are unsupported, not within Equipment specifications and/or which otherwise do not meet the standards of the manufacturer or Atlantic; (2) failure or variances of electrical power or other failure to provide proper operating environment (e.g. air conditioning, heat or humidity control); and (3) theft, fire, water, acts of god and/or any other damage resulting from causes outside of Atlantic’s reasonable control; (ii) performance of service or repairs on, or other modification of, Equipment by anyone other than Atlantic or its assigned servicing agent; (iii) Equipment transportation or relocation; and/or (iv) operating system or application software, network issues, firmware or other programmed code, internal or external to Equipment;
    2. Equipment transportation, relocation and/or related services (e.g. Equipment wrapping, unwrapping, uninstalling, reconnection, reinstallation, repair services resulting from transportation/relocation not performed by Atlantic);
    3. Services or other performance outside of Atlantic’s regular business hours;
    4. Wiping, erasing or otherwise removing hard drive(s) from Equipment (except where subject to a separate order); and
    5. Other work and/or services beyond the scope of this Agreement.

All Excluded Services are chargeable at Atlantic’s then-current rates and terms. If Atlantic determines it is unable to maintain Equipment through its routine preventive maintenance program (e.g. due to advanced age, excessive usage, an Exclusion or any other reason), any necessary services will be deemed Excluded Services for which Atlantic will endeavor to provide a cost estimate. If Customer declines to authorize the same, Atlantic reserves the right, upon at least ten (10) days’ written notice, to terminate coverage under this Agreement for any or all Equipment after which Atlantic shall have no further obligations with respect to terminated Equipment. If the Exclusion that formed the basis for termination resulted, in whole or in part, from an act or omission of Customer (e.g. misuse, negligence, unauthorized servicing or other failure to meet its obligations), the termination shall be treated as a default. Neither Atlantic nor an assigned servicing agent shall be responsible for service delays or inability to perform service due to any “cause” beyond its reasonable control (e.g. unavailability of parts, property manager demands); and, in any such event, Atlantic reserves the right to terminate this Agreement in whole or in part on not less than ten (10) days’ notice. As long as Customer is not responsible, in whole or in part, for the “cause” that formed the basis for Atlantic’s termination, Atlantic will credit to Customer pre-paid fees attributable to the terminated portion of the then-current term (except to the extent Customer has outstanding obligations (e.g. for pre-termination performance) or defaults.

  1. Atlantic assumes no responsibility or liability whatsoever for: (a) Exclusions; (b) Customer’s failure to meet its obligations (including those responsibilities under Section 7 hereinabove); and/or (c) for Customer’s (or any third party’s) operation, use (including regulatory compliance) and/or misuse of, or other damage to, Equipment; and Customer will indemnify, defend and hold harmless Atlantic from and against any claims, expenses and/or other liability arising from any of the foregoing.
  2. ATLANTIC’S TOTAL OBLIGATIONS AND ANY EXPRESS WARRANTIES UNDER THIS AGREEMENT, IF ANY, ARE IN LIEU OF: (A) ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WHICH ARE SPECIFICALLY WAIVED; AND (B) ALL OTHER OBLIGATIONS AND/OR LIABILITIY FOR DAMAGES, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR: 1) PERSONAL INJURY AND DAMAGE TO OR LOSS OF PROPERTY (INCLUDING INTELLECTUAL PROPERTY); AND 2) LOST PROFITS, LOSS OF REVENUE, LOSS OF USE, LOST OR CORRUPTED DATA, AND ANY OTHER INDIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ATLANTIC’S SERVICES. CUSTOMER AGREES THAT IF ATLANTIC CAUSED ANY INJURIES OR DAMAGES TO CUSTOMER OR CUSTOMER’S PROPERTY, WHICH SAID CLAIM IS NOT OTHERWISE WAIVED HEREIN, ATLANTIC’S MAXIMUM CUMULATIVE LIABILITY FOR ANY AND ALL SAID INJURIES AND/OR DAMAGES WILL NOT EXCEED CUSTOMER’S PAYMENTS TO ATLANTIC DURING THE IMMEDIATELY PRECEDING SIX (6) MONTHS FOR THE SERVICE(S) RENDERED THAT CAUSED SAID INJURIES OR DAMAGES.
  3. This Agreement constitutes the entire agreement between the parties with respect to the Equipment, superseding all previous proposals, oral or written.
  4. Customer will be in default if it fails to comply with its obligations, including making prompt undisputed payments when due, under this Agreement, any other agreement with Atlantic or a third party lease of Equipment. Upon any Customer default, Atlantic may (without notice): (a) withhold services, supplies and/or other products until the default is resolved (during which payment obligations will continue to accrue); (b) declare immediately due and payable all past, current and prospective charges under this Agreement and any other agreement; (c) commence collection activities for all sums due and to become due hereunder, including, without limitation, costs and expenses of collection and reasonable attorneys’ fees; (d) terminate this Agreement on ten (10) days’ written notice; and/or (e) pursue any other remedies permitted by law. Customer will reimburse Atlantic for all reasonable costs and expenses incurred (including reasonable attorneys’ fees, court costs, collection agency fees, etc.) in enforcing this Agreement. Atlantic’s rights and remedies herein are cumulative and not exclusive of any other rights and/or remedies available to Atlantic at law, in equity, under statute or otherwise. Should either party commence a lawsuit arising out of or related to the terms and conditions of this Agreement, such lawsuit shall be filed exclusively in a state or federal court located in New York County. Further, this Agreement is governed by, and shall be interpreted exclusively under, the laws of the State of New York.

Atlantic Maintenance Terms and Conditions

Version 2.0 – February 16, 2018.

  1. The initial term of the Agreement is the period indicated on the Sales Order Form (the “Order,” collectively, with these Atlantic Maintenance Terms and Conditions and any other incorporated agreements, the “Agreement”). Thereafter, this Agreement will automatically renew for successive twelve (12) month periods, unless either party gives written notice of non-renewal at least thirty (30) days prior to expiration of the then-current term. Customer shall not (without Atlantic (“Atlantic”)’s prior written consent): (a) sell, assign or transfer its rights and/or obligations under this Agreement; or (b) relocate (including to another Customer site) multi-function product (MFP) equipment covered under the agreement (as indicated on the Order) (“Equipment”).
  2. For Equipment purchases or leases (supplied by Atlantic), if Customer (a) cancels this Agreement after signing and before receipt of Equipment; and/or (b) refuses or otherwise fails to accept delivery of such Equipment, Customer shall, immediately upon demand, pay Atlantic a restocking fee equal to 20% of equipment selling price.
  3. Unless otherwise specified on the Order, the pricing under this Agreement is based on a cost per click (“CPC”) maintenance program (applicable CPCs are listed on the Order). Each copy or print on an 8.5”x11” 20lb bond page is a click. CPC programs may be Supply-Inclusive or Parts and Labor Only (as stated on Order). Parts and Labor Only programs exclude supplies and consumable parts (e.g. drums, developer, fusers, blades). For Supply-Inclusive programs, Atlantic will provide toner and developer required for normal operation of Equipment based on manufacturer’s stated yield on an 8.5″x11″ 20lb bond page. Any additional toner and/or developer required due to greater image densities and/or otherwise reduced yield will be separately chargeable at Atlantic’s then-current rates. For Customer’s convenience, Atlantic may stock toner, parts and/or supplies at Customer’s location. Any such stock remains Atlantic’s property until fully consumed, and if Customer fails to return the same to Atlantic upon its request, it will be chargeable to Customer at Atlantic’s then-current rates. Atlantic reserves the right to charge a monthly fee to cover increased variable costs including, but not limited to fuel, shipping and/or freight.
  4. This is a non-cancellable term agreement. Early termination by Customer is a default, upon which, without limitation, all past, current and prospective charges, plus any expense or other liability incurred by Atlantic due to such default, shall become immediately due and payable. For CPC programs, “prospective charges” equal the average monthly charge (applicable CPCs multiplied by average monthly usage), multiplied by the number of months remaining in the then-current term. Upon any termination hereof, Customer shall immediately return to Atlantic any Atlantic property in its possession (e.g. equipment (whether loaner or replacement), parts, supplies and/or toner). Should Customer fail to meet such return obligation, Customer shall pay Atlantic for such property, at Atlantic’s then-current rates, immediately upon demand.
  5. Unless specifically listed on the Order, this Agreement does not cover network support (e.g. installation of print drivers and utilities), beyond the Equipment on the Order. Unless covered by a separate network support agreement, all network functionality support beyond the initial installation will be chargeable at Atlantic’s then-current rates.
  6. All charges arising hereunder, including, without limitation, monthly maintenance fees and any billable excess clicks, services, supplies, and all applicable taxes on such charges, are due net thirty (30) days from the invoice date. Atlantic may charge Customer interest on any overdue (not paid when due) charges at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by law. Atlantic reserves the right to increase rates hereunder once annually.
  7. Customer is responsible: (a) to provide: (i) all requested and/or required meter reads on a timely basis (non-compliance will necessitate meter estimation to determine invoice amounts and application of additional per-meter processing charges); (ii) adequate operating environment/conditions, including proper ventilation and power; and (iii) Atlantic with full and free access to equipment; (b) to, at all times hereunder, operate Equipment properly, safely and in accordance with manufacturers’ specifications; and (c) for ensuring compliance with its legal requirements, including, without limitation, those concerning data retention, protection and/or deletion/removal. The parties acknowledge and agree that Atlantic shall have no obligation to remove, delete, preserve, maintain or otherwise safeguard any information, images or content retained by or resident in any Equipment.
  8. For applicable maintenance programs, during regular business hours (8:30 a.m. – 5:00 p.m., Monday through Friday, except Federal holidays), Atlantic (or its assigned servicing agent) will provide required preventive maintenance and repair services necessary to keep the Equipment operating in substantial conformity with applicable published specifications at no additional cost to Customer, provided that: (a) the Equipment is in good working order on the date of commencement of this Agreement; (b) the service is not an Excluded Service; and (c) Customer remains in compliance with its obligations to Atlantic both hereunder and under any other agreement. Customer agrees Atlantic shall not be required to use OEM parts and supplies, provided that parts or supplies meet or exceed manufacturers’ specifications. Both installed and removed parts are deemed property of Atlantic.
  9. Service calls for operator functions (e.g. adding or changing supplies, auto gradation/color calibration, or any other Customer responsibility) will be subject to a time and material service charge at Atlantic’s then-current rates. Other services that are excluded from Atlantic’s obligations and chargeable hereunder (collectively, “Excluded Services” or “Exclusions”) include, without limitation:
    1. Repairs or other services resulting from or necessitated by: (i) causes other than normal use, including, without limitation: (1) Customer’s (or any third party’s other than Atlantic): misuse, abuse, accidents, negligence, willful acts or use of parts/supplies that do not meet Atlantic’s standards; (2) failure or variances of electrical power or other failure to provide proper operating environment (e.g. air conditioning, heat or humidity control); and (3) theft, fire, water, acts of god and/or any other damage resulting from causes outside of Atlantic’s reasonable control; (ii) performance of service or repairs on, or other modification of, Equipment by anyone other than Atlantic or its assigned servicing agent; (iii) Equipment transportation or relocation; and/or (iv) operating system or application software, network issues, firmware or other programmed code, internal or external to Equipment;
    2. Equipment transportation, relocation and/or related services (e.g. Equipment wrapping, unwrapping, uninstalling, reconnection, reinstallation, repair services resulting from transportation/relocation not performed by Atlantic);
    3. Services or other performance outside of Atlantic’s regular business hours;
    4. Wiping, erasing or otherwise removing hard drive(s) from Equipment (except where subject to a separate order); and
    5. Other work and/or services beyond the scope of this Agreement.All Excluded Services are chargeable at Atlantic’s then-current rates and terms. If Atlantic determines it is unable to maintain Equipment through its routine preventive maintenance program (e.g. due to advanced age, excessive usage, an Exclusion or any other reason), any necessary services will be deemed Excluded Services for which Atlantic will endeavor to provide a cost estimate. If Customer declines to authorize the same, Atlantic reserves the right, upon at least ten (10) days’ written notice, to terminate coverage under this Agreement for any or all Equipment after which Atlantic shall have no further obligations with respect to terminated Equipment.  If the Exclusion that formed the basis for termination resulted, in whole or in part, from an act or omission of Customer (e.g. misuse, negligence, unauthorized servicing or other failure to meet its obligations), the termination shall be treated as a default. Neither Atlantic nor an assigned servicing agent shall be responsible for service delays or inability to perform service due to any “cause” beyond its reasonable control (e.g. unavailability of parts, property manager demands); and, in any such event, Atlantic reserves the right to terminate this Agreement in whole or in part on not less than ten (10) days’ notice.  As long as Customer is not responsible, in whole or in part, for the “cause” that formed the basis for Atlantic’s termination, Atlantic will credit to Customer pre-paid fees attributable to the terminated portion of the then-current term (except to the extent Customer has outstanding obligations (e.g. for pre-termination performance) or defaults.
  10. Atlantic assumes no responsibility or liability whatsoever for: (a) Exclusions; (b) Customer’s failure to meet its obligations (including those responsibilities under Section 7 hereinabove); and/or (c) for Customer’s (or any third party’s) operation, use (including regulatory compliance) and/or misuse of, or other damage to, Equipment; and Customer will indemnify, defend and hold harmless Atlantic from and against any claims, expenses and/or other liability arising from any of the foregoing.
  11. Atlantic’s TOTAL obligations and ANY EXPRESS warranties under this agreement, IF ANY, are in lieu of: (A) all other warranties, express or implied, including, WITHOUT LIMITATION, implied warranties of merchantability, fitness for a particular purpose and NON-Infringement, which are specifically waived; and (B) all other obligations AND/or liabilities for damages, including, without limitation: 1) personal injury AND Property (including intellectual property); and 2) losT profits, LOSS OF REVENUE, LOSS OF USE, LOST OR CORRUPTED DATA, and ANY other indirect or consequential damages arising FROM or in connection with this agreement or ATLANTIC’s services. Customer agrees that if Atlantic caused any injurIES or damageS to customer or customer’s property, which said claim is not otherwise waived herein, ATLANTIC’S maximum CUMULATIVE LIABILITY for ANY AND ALL said injurIES AND/or damageS WILL NOT EXCEED CUSTOMER’S PAYMENTS TO ATLANTIC DURING THE IMMEDIATELY PRECEDING SIX (6) MONTHS FOR THE service(s) rendered that caused said injurIES or damageS.
  12. This Agreement constitutes the entire agreement between the parties with respect to the Equipment, superseding all previous proposals, oral or written.
  13. Customer will be in default if it fails to comply with its obligations, including making prompt undisputed payments when due, under this Agreement, any other agreement with Atlantic or a third party lease of Equipment. Upon any default, Atlantic may (without notice): (a) withhold services, supplies and/or other products until the default is resolved (during which payment obligations will continue to accrue); (b) declare immediately due and payable all past, current and prospective charges under this Agreement and any other agreement; (c) commence collection activities for all sums due and to become due hereunder, including, without limitation, costs and expenses of collection and reasonable attorneys’ fees; (d) terminate this Agreement on ten (10) days’ written notice; and/or (e) pursue any other remedies permitted by law.  Customer will reimburse Atlantic for all reasonable costs and expenses incurred (including reasonable attorneys’ fees, court costs, collection agency fees, etc.) in enforcing this Agreement.  Atlantic’s rights and remedies herein are cumulative and not exclusive of any other rights and/or remedies available to Atlantic at law, in equity, under statute or otherwise.  Should either party commence a lawsuit arising out of or related to the terms and conditions of this Agreement, such lawsuit shall be filed exclusively in a state or federal court located in New York County. Further, this Agreement is governed by, and shall be interpreted exclusively under, the laws of the State of New York.